5.  The first and second applicants were born in 1951 and the third applicant was born in 1948. They live in Turkey.
6.  The applicants are the heirs of Mr Salih Ekrem Pekinel and Mr Abdurrahim Pekinel, who were their father and uncle respectively (“ancestors”). The applicants’ ancestors (muris) were allegedly the owners of 2,258,000 square metres of land, along with six other persons (“co‑owners”), in the Maltepe village of the Menemen district in the Izmir province.
7.  On 13 October 1961 the Land Registry Commission (Tapulama Komisyonu) attached to the General Directorate of Land Registration (Tapu ve Kadastro Genel Müdürlüğü) conducted a land registry survey (tapulama tespiti) and registered a plot of land (“plot no. 726”) in the Maltepe village as being owned by eight people - the applicants’ ancestors and the other co-owners.
8.  In 1964 the Treasury challenged this land registry survey. It claimed that the land in question had been used as meadowland (mera) and that therefore it had not been correctly surveyed by the Commission.
9.  On 22 May 1974 the land register was amended by the Land Registry Commission and the Treasury was registered as the owner of plot no. 726.
10.  On 29 July 1974 six persons (“the plaintiffs”) filed an action with the Menemen Cadastre Court, requesting that the decision of the Land Registry Commission be set aside. They claimed that the land in question had been registered with their title and that it belonged neither to the Treasury nor to the applicants’ ancestors and the co-owners.
11.  On an unspecified date the applicants’ ancestors filed a counter-claim that they held a share in plot no. 726. They requested that the former records at the land registry, which proved their right of ownership in respect of plot no. 726, be confirmed. They based their arguments on the land registry records of December 1884, which indicated that the land in question was owned by their father, Salih Paşa.
12.  On 14 April 1979 Mr Abdurrahim Pekinel and, on 28 November 1982, Mr Salih Ekrem Pekinel died. The applicants were designated as their heirs.
13.  On 7 July 1986 the Menemen Cadastre Court rendered its judgment. It held as follows:
“The land registry record of 1884 concerning plot no. 726 in Maltepe village was modified. ...
The same record was also modified regarding plot no. 1 in Seyrekköy village. The record concerning this plot became final since there was no objection. ...
According to the initial records, the size of the land was 1,103,163 square metres, whereas the size of plot no. 1 in Seyrekköy was found to be 3,619,600 square metres. It was established that the land’s borders were unclear in the records and thus open to enlargement. According to the case-law of the Court of Cassation and Article 42 of the Law on Cadastre, if the borders mentioned on records were uncertain and suitable for enlargement, the total amount indicated in these records should be taken into consideration.
...
Following the finalisation of the land registry record concerning plot no. 1 in Seyrekköy, both the plaintiffs and the plaintiffs in the counter-claim acquired land from this plot.”
14.  The Menemen Cadastre Court further found that the land in question was public property because it had been used as meadowland. Thus it could not be the subject of a determination by the Land Registry Commission. The court concluded that plot no. 726 in the Maltepe village belonged neither to the plaintiffs nor to the applicants’ ancestors and the co‑owners, but to the Treasury.
15.  On 17 November 1988 the Court of Cassation quashed the judgment of the Menemen Cadastre Court and remitted the case for reconsideration. The Court of Cassation observed that the Land Registry Commission had established that plot no. 726, which covered 2,258,000 square metres of land, had belonged to some of the plaintiffs. It noted that the Treasury had objected to the registration made by the Commission, claiming that the amount of land shown in the land registry exceeded the amount to which the plaintiffs were entitled. It pointed out that the plaintiffs had challenged the registration with reference to the records kept at the land registry and that the first-instance court had dismissed the case, qualifying the land as a “meadow”.
16.  The Court of Cassation reasoned that the investigation carried out by the first‑instance court was not sufficient to render a judgment. The plaintiffs based their claims on the records kept at the land registry. These records were included in the case file but did not indicate the land’s exact location. Furthermore, the documents concerning the neighbouring plots were not used and the nature of the property was not properly examined.
17.  The Court of Cassation opined that, in order to reach a well-founded conclusion, the documents concerning the neighbouring plots should be included in the file, an on-site examination should be carried out, and local persons who were old and who knew the area should be heard. It considered in particular that issues concerning the nature and the ownership of the land and the identities of the persons who used the land should be determined by way of testimony. In addition, an expert report should be obtained from an agricultural engineer.
18.  The Court of Cassation concluded that taking a decision without making a sufficient examination was incorrect, and that the reasoning as to the necessity of the determination by the Land Registry Commission was not accurate.
19.  Following the decision of the Court of Cassation, the case was remitted to the Menemen Cadastre Court.
20.  The plaintiffs and the plaintiffs in the counter-claim, including the applicants, alleged that plot no. 726 had belonged to Salih Paşa and had been inherited by his heirs. Therefore, neither the Treasury nor other persons had a claim to it. In this connection, they stated that plot no. 1 in Seyrekköy and plot no. 726 in Maltepe had belonged to Salih Paşa and Hacı Velioğlu and that, following an agreement between their heirs, the land had been shared. They alleged that plot no. 1 in Seyrekköy had been given to the heirs of Hacı Velioğlu, whereas plot no. 726 had been reserved for the heirs of Salih Paşa. The applicants averred that they had not acquired any property from plot no. 1 in Seyrekköy.
21.  The representative of the Treasury claimed that all the plaintiffs had received more land than that to which they were entitled after the Land Registry Commission’s decision. He maintained that the plaintiffs had acquired property from plot no. 1 in Seyrekköy. He further claimed that the land in question was meadowland, which could not be qualified as private property.
22.  The Menemen Cadastre Court carried out an on-site inspection and heard evidence from three local experts and an agricultural engineer.
23.  On 13 May 1992 the Menemen Cadastre Court, taking into account the findings of the local experts and the reports of the agricultural engineer, decided that plot no. 726 in Maltepe belonged to the persons specified by the Land Registry Commission in 1961. It therefore ordered the registration of these persons or their heirs, including the applicants, as the owners of plot no. 726 in the Maltepe village at the land registry.
24.  On 21 April 1993 the Court of Cassation quashed the judgment of 13 May 1992 and sent the case file to the Menemen Cadastre Court.
25.  The Court of Cassation reasoned that the first-instance court had not conducted an adequate investigation, the guidelines of which had been indicated in its decision of 17 November 1988. It pointed out that the size of the land in question was 1000 dönüm according to the land registry records of 1884, whereas the land registry records of 1890 had indicated that the size of the land was 1200 dönüm. The court observed in this connection that the first‑instance court had failed to explain the reason for the increase in the size of the land. Moreover, the first-instance court had failed to include in the case file the land registry record of 1875 for the land in question, the documents concerning the neighbouring plots of the land and the military maps of the area.
26.  The Court of Cassation also noted that the land registry record of 1884 referred to some places as being the borders of the land in question, (“sıra melengeç, Yorgaki oğlu, İsmet hanım, harita, Kara istirati, çataka tarlaları and kulak istifanı”), which was not fully comprehensible. Therefore, it should be determined whether the borders of the plot of land were correctly cited in the records at the land registry. The court stated that a map of the disputed plot of land and the neighbouring plots of land should be drawn up, and that the military map of the area, the statements of the experts and the local people should be taken into account when making that map.
27.  Upon receipt of the case file, the Menemen Cadastre Court re-examined the case.
28.  It requested the General Directorate of Land Registration to submit a copy of the records of 1875 kept at the land registry office in respect of plot no. 726.
29.  On 21 July 1994 the General Directorate informed the court that the record in question did not pertain to any plot of land in Seyrekköy.
30.  On 1 December 1994 the Directorate sent the document in question and informed the Menemen Court that the reason for the increase in size of the property could not be determined.
31.  In 1996 the plaintiffs of the initial case, which had been filed in 1974, withdrew their case, informing the court that they did not have a claim to plot no. 726.
32.  The Menemen Cadastre Court carried out two further on-site inspections and took oral evidence from local experts and witnesses. During the on-site visit, a scientific expert and an agricultural expert also inspected the area and submitted their observations concerning the case.
33.  In its judgment of 11 November 1998, the Menemen Cadastre Court stated the following:
“... The disputed property, plot no. 726 in Maltepe, was registered as a meadowland by the Land Registry Commission. The Commission determined the plaintiffs as the owners of the property having regard to the land registry records of 1921, 1946 and 1952. The Land Registry Commission’s decision indicated the size of the land in the amount of 2,258,000 square metres. Following the objection filed by the Treasury, on 22 May 1974, the record at the land registry was revised by the Land Registry Commission and the Treasury was registered as the owner of plot no. 726.
Plot no. 1 in Seyrekköy village was registered with the titles of some of the plaintiffs, who relied on the land registry records for their action.
It has been understood from the local experts’ statements that the words “kulakistifan, yorgakioğlu, çanako, karaistifan”, which were mentioned in the land registry records of 1952, 1890 and 1884, were the names of the Greeks who had left the country after the establishment of the Republic.
According to Article 20/C of Law no. 3402, if the borders indicated in the records and documents were not based on maps or sketches and were uncertain and suitable for enlargement, the amount indicated in these records and documents should be taken into consideration.
According to the case-law of the Court of Cassation the amount shall be taken into consideration if the records have unclear borders.
It has been understood that “kulakistifan, yorgakioğlu, çanako, karaistifan” are the names of Greeks whose whereabouts are unknown. Therefore, the land registry records should be valid as regards the amount of land indicated in them. However, some of the plaintiffs acquired more land than specified in the land registry records for plot no. 1 in the Seyrekköy village. Consequently, the case should be dismissed and, for the reasons explained above, the Treasury should be registered as the owner of plot no. 726 in the Maltepe village.”
34.  On an unspecified date the applicants appealed against the judgment of 11 November 1998.
35.  After holding a hearing on the merits of the case, on 5 October 1999 the Court of Cassation dismissed the appeal, for the following reasons:
“It has not been proven that the amount of land cited in the land registry records of 1884 included the disputed plot. The record in question and the land registry records of 1926 had been revised in relation to plot no. 1 in Seyrekköy. It has been understood that the size of plot no. 1 in Seyrekköy is actually more than the size mentioned on the land registry records. It has also been understood that the borders indicated in the land registry records in respect of plot no. 1 in Seyrekköy are uncertain. It is clear that the extent of the land in plot no. 1 is greater than that indicated in both the land registry records. Accordingly, it should be acknowledged that the land registry records on which the plaintiffs based their action relate to plot no. 1 in Seyrekköy. Therefore, the judgment should be upheld.”
36.  On 26 February 2001 the Court of Cassation dismissed the applicants’ request for rectification of the decision, holding that the land registry records on which the plaintiffs had based their action in fact related to plot no. 1 in Seyrekköy.
37.  The decision dated 26 February 2001 was not served on the applicants. It was deposited with the Registry of the Menemen Cadasre Court on 12 March 2001. The applicants stated that they only learned of it in July 2001.